Stupid but Constitutional

More on why I think legislation forcing floor-crossing legislators to run in by-elections is not unconstitutional

In my last post, I asked whether there is a right to rat—whether member of Canadian legislatures have a right under the Canadian Charter of Rights and Freedoms to cross the floor and join the caucus of a party different from the one for which they were elected, without going through a by-election first. I argued that there is no such right, although the bans on floor-crossing, such as the one that exists, and is now being challenged before the courts, in Manitoba are a bad idea. Somewhat to my surprise, that post provoked a good deal of discussion on Twitter (relative to my other posts, anyway, which to be fair is a pretty low standard). Because of the time difference, the fun mostly happened while I was asleep, and I missed out, so I want to follow up here.

One question that was raised, by Emmett Macfarlane, is whether I sufficiently addressed the floor-crossers’ “freedom”, under section 2(d) of the Charter, to associate with the caucus of their choice (and indeed a party caucus a right to associate with them)”. I’m not sure how much more I can say on this point; there seems to be a fundamental disagreement between prof. Macfarlane and me here. As I see it, no one is prevented from associating with a caucus, nor is a caucus prevented from associating with anyone. Only a preliminary condition is imposed: that before undertaking a (formal) association, the floor-crosser be elected under that caucus’s party label. The floor-crosser is put in the same position as any other citizen—one cannot become a member of a caucus, even if both sides are agreed, unless one first gets elected. (Consider the case of an unsuccessful candidate: he or she would very much like to be part of the caucus, and the caucus would love to have him or her, but those dastardly voters get in the way. ) Similarly, even if  engaging in collective bargaining is a constitutional right, as the Supreme Court now claims it is, I don’t think that even the Supreme Court would say that the requirement that the union have the support of a majority of workers before it is able to impose itself on their employer is a violation of the freedom of association, although it is doubtless a pre-condition that gets int the way of people engaging in associational activities.

Second, prof. Macfarlane remains of the view that the floor-crossers’ constituents rights to effective representation under that courts have read into section 3 of the Charter are infringed when their representatives are “restricted from representing [them] by responding to political circumstances that leads them to believe joining another caucus is the best way to do that”. I do not think that the right to effective representation has ever been taken to go nearly as far as prof. Macfarlane wants to take it here. In a passage from Haig v. Canada, [1993] 2 SCR 995 later endorsed by the majority in Figueroa v. Canada (Attorney General), 2003 SCC 37, [2003] 1 SCR 912, Justice L’Heureux-Dubé spoke of a

right to play a meaningful role in the selection of elected representatives who, in turn, will be responsible for making decisions embodied in legislation for which they will be accountable to their electorate. (1031; underlining in Figueroa at [25])

In other words, the right protected by section 3, both as a matter of constitutional text and even in the Supreme Court’s cases that have arguably expanded it to some extent, concerns the process of elections. As the majority put in Figueroa, it is “the right of each citizen to a certain level of participation in the electoral process”. [26] Section 3 does not deal with what happens within the legislature once the elections have taken place.

If the courts were to expand the scope of section 3 in this way, they would become entangled in all manner of questions that have always been thought of as a matter of politics—for example, whether the whip or a party line gets in the way of “effective representation”. (And I don’t think that parliamentary privilege, of which more shortly, will save them. Privilege attaches to the functioning of legislative bodies, not political parties or even caucuses.) Jan Jakob Bornheim pointed out to me that that’s precisely what happens in Germany, where the Basic Law‘s provision making members of the Bundestag “responsible only to their conscience” (article 38) has been interpreted to prohibit the imposition of party lines. For my part, I don’t think it’s a good idea to involve the courts in these issues, and I doubt that Canadian courts are all that keen to take on this responsibility, in the absence of a reasonably clear textual requirement that they do so.

In addition to all of that, I think that we should take seriously the role that party affiliation plays in people’s voting behaviour, and acknowledge that many, and probably most, voters will feel that their representation is undermined, not enhanced, by the ability of a representative whom they chose (in large party, if not exclusively) he or she was the candidate of one party to switch, mid-term, to a different party. Prof. Macfarlane suggests that this amounts to “using a reality of voting behaviour to transform the core purpose and function of” a legislator “which isn’t to represent a particularly party to but to represent a constituency”. For my part, I wouldn’t want a constitutional doctrine that is oblivious to “realities of voting behaviour” in the name of some high-minded pursuit of politics as it ought to be rather than as it is. In any case, I don’t think the distinction between the roles of representative of a party and representative of a constituency are as sharply distinct as prof. Macfarlane suggests. A legislator elected under a partisan banner can, and indeed is expected to, represent a constituency as a partisan (not in every way, of course, but in much of what he or she does),  and really don’t see how the Charter gets in the way of that, or why it should.

The final question I will address here is whether any of this matters, or whether the whole thing is a matter Parliamentary privilege anyway,  and the courts will not interfere with the way in which privilege is exercised. On this point, I think there is some confusion going on. The internal functioning of legislative bodies is a matter of privilege, as are the rules they make, internally and for themselves, such as their standing orders. That, as Benjamin Oliphant noted, the standing orders of Canadian legislatures deny independent members some important rights that they grant to those belonging to political parties (and thus arguably undermine their constituents’ right to effective representation) is a matter of privilege and not subject to Charter review. But the issue we are concerned with does not arise out of standing orders or an exercise by the Speaker of the Legislative Assembly of that body’s self-governing powers. It concerns the constitutionality of a statute enacted pursuant to one of the province’s legislative powers (namely that in section 45 of the Constitution Act, 1982, to legislate in relation to the constitution of the province), to be part of the law of the land, and not merely the law and custom of Parliament. The exercise of this legislative power is obviously subject to the Charter; as section 52(1) of the  Constitution Act, 1982 provides, “any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect”.

Now, as the Court of Appeal for Ontario explained in Ontario (Speaker of the Legislative Assembly) v Ontario (Human Rights Commission), (2001) 54 OR (3d) 595 at [35], although the constitutionality of legislation in relation to the functioning of a legislature or one of its components is subject to the Charter, to the extent that this legislation calls for self-application by the legislature or its Speaker, the courts will not interfere with decisions made pursuant to that legislation. (This principle, known as the right of “exclusive cognizance”, is an aspect of privilege.) So, for instance, in the case of Manitoba’s ban on floor-crossing, it will be for the Speaker (I assume) to enforce the rule that “a member who … [has] cease[d] to belong to the caucus of that party during the term for which he or she was elected … must sit … as an independent and is to be treated as such”, and the courts will not call into question the Speaker’s decisions about what that entails. But the question of the constitutionality of that provision is a prior and separate one, and the right of exclusive cognizance does not apply to that question.

In short, although they are not immune from constitutional scrutiny because of Parliamentary privilege, bans on floor-crossing are not unconstitutional. They infringe neither the freedom of association nor the right to vote (or to effective representation) protected by the Charter. Once more, to say that such bans are constitutional is not to say that these bans are a good policy. I think they are ineffective (because they cannot prevent a would-be floor-crosser from voting with his new friends), and useless, because voters can always get rid of a representative they don’t like at the next election. One might even say that these bans are stupid—stupid but constitutional, as the late Justice Scalia used to say.

A Right to Rat?

A Manitoba MLA claims there is a Charter right to cross the floor. He is wrong.

John Markusoff writes in Maclean’s about a Charter challenge launched by Steven Fletcher, now an independent member of Manitoba’s Legislative Assembly, against section 52.3.1 of the province’s Legislative Assembly Act, which prevents members “elected with the endorsement of a political party” from joining the caucus of a different party during  their term. They must, rather, sit as independents—or resign and get themselves re-elected under their new partisan colours. Mr Fletcher will be “arguing that the ban infringes on his freedoms of expression and association, and … on the voting rights of his constituents”, the latter argument being based on an independent member’s lesser privileges (in relation to things like the ability to ask questions) compared to those of the members of a caucus. Mr. Fletcher has been expelled from the Conservative caucus, and Mr. Markusoff describes him as “an MLA marooned, and much disempowered politically for it”—although Mr. Fletcher apparently insists he has no plans to join another party.

Mr. Markusoff is supportive of Mr. Fletcher’s plight, pointing to the fact that Sir “Winston Churchill … cross[ed] the floor twice during his storied career”. (Churchill’s own take on this was that “anyone can rat, but it takes a certain amount of ingenuity to re-rat”.) Mr. Markusoff also quotes two political scientists who think Mr. Fletcher has a pretty good argument. Emmett Macfarlane is one of them, agreeing that Mr. Fletcher’s “constituents are poorly served”. Meanwhile Mr. Fletcher’s lawyer argues that the ban on floor-crossing—or ratting, or, as it’s called in New Zealand, waka-jumping (a waka is a Māori canoe)—serves to give party leaders more power at the expense of ordinary members. With that, I agree, and I too think that the ban on floor-crossing is a bad idea, as I explained here when commenting on a (never-enacted) proposal to impose a similar ban in Québec. Yet as I also noted in that post, in my view, a ban is not unconstitutional.

Indeed, it seems to me that the ban is not a meaningful restriction on anyone’s rights. For one thing, no one has a right to seat in the Legislative Assembly, or to be part of a caucus, without a mandate from the voters. And for another, the ban on floor-crossing does not prevent members from joining a party other than that for which they were elected, still less from voting as they please or voicing whatever opinions the Legislative Assembly’s standing orders allow them to voice. What it does is require them to do is stand for election to have voters confirm their party switch. If the voters still want to have the member as their representative under his or her new colours, then he or she will go on free as a bird, or at any rate as free as his or her new caucus permits. Otherwise, it’s the voters, not the ban on floor-crossing, that will have silenced the now-former member. And if the point is that the voters will likely value being represented by someone of the same party they previously voted for—well, I don’t think the Charter denies them that preference, least of all in the name of “effective representation”.

A couple of other points are worth considering here. First, if the argument is that it is somehow contrary to the Charter for party leaders to be able to exert pressure, even considerable pressure, on the members of their caucuses, this goes very far indeed. Does the leader’s ability to distribute, and to withdraw front-bench (and, in government, cabinet) roles raise constitutional questions? Or his or her ability to boot a member from caucus quite apart from any ban on floor-crossing, on the premise that there is no guarantee that the expelled member will in fact find a new political home, and may remain “marooned” instead? I doubt that a court would want to go that way, and this is as it should be. Voters are quite capable of delivering their verdict on any such shenanigans—if they care which, for better or for worse, they probably mostly do not.

Second, while floor-crossing might be described as a feature, or even “a time-honoured, Churchillian convention”, as Mr. Markusoff does in fact describe it, in a first-past-the-post universe, where members of legislatures are in principle elected in their personal capacity, it is very much a bug in a system of proportional representation. Because the legitimacy of the distribution of seats in an assembly elected using such a system rests on its relationship to the party vote (whether or not some of assembly’s members are in fact elected to represented particular constituencies), changes in the partisan affiliation of individual MPs undermine it to a greater extent than they do a system that rests on the personal relationships between MPs and their constituents. Of course, Manitoba does not have a proportional electoral system, and it should be possible for a court intent on striking down the ban on floor-crossing to do so in a manner that at least leaves the question open should it (or another Canadian jurisdiction) undertake electoral reform, but one should at least be wary of invoking over-broad principles in this matter.

To repeat, I do not think that rules, such as Manitoba’s, that put a break on the ability of members of legislatures to cross the floor are good idea. Whether the practice is Churchillian or Emersonian in any given case, the voters will be able to pass their judgment at the next election; I do not think that there is a pressing need to rush them to it. And to the extent that it can reduce the power of party leaders, there might be something to be said for floor-crossing—though there is also something to be said against a means for individual legislators of acquiring disproportionate power in a finely balanced assembly. Be that as it may, these are matters of political morality and institutional design. There is no right to rat, and the courts should not create one.

A Respectful Dissent From the Khadr Consensus: Ward Revisited

The case of Omar Khadr gives scholars a rare opportunity to question the fundamentals of public law damages. Such damages are notoriously difficult to quantify. As Lord Shaw once put it, “the restoration by way of compensation is therefore accomplished to a large extent by the exercise of a sound imagination and the practice of a broad axe.” This is doubly true respecting violations of rights and freedoms.

Despite these difficulties, most observers have made near-conclusive and wide-ranging claims about damages in the context of the Khadr case. For example, Prime Minister Justin Trudeau has argued that $10.5M is the invariable cost, in this case, of a Charter of Rights and Freedoms violation. Prof. Audrey Macklin similarly argued that the settlement is justified because the Government of Canada’s actions were “morally reprehensible”; and what’s more, a damages award at trial would have “dwarfed” the settlement figures. Prof Craig Martin simply argues that a restoration of “Canadian values” justifies the Khadr settlement. Other examples abound.

Whether the settlement and its quantum are justified in comparison to a damages award at trial is a fraught question. There are no easy answers provided by the law of constitutional damages. Yet the observers above reason from political premises about the importance of the Charter to Khadr’s “human rights” to wholly justify the settlement, without considering the legal justifications and difficulties associated with awarding Charter damages in this case. Indeed, much of the analysis has not engaged with Ward v Vancouver (City), in which the Supreme Court of Canada discussed the legal considerations directly relevant to Khadr.  In this post, I use the Ward analysis to critique two of the main claims used to support the settlement and its quantum: (1) that a sizeable settlement is appropriate based on the circumstances (2) quantum: that a damages award at trial would have “dwarfed” the settlement figures. Instead, it is just as likely that a damages award may not have reached $10.5M at all.

As we shall see, uncertainty is the watchword. That is what the law, not politics, prescribes–and why I dissent from the orthodoxy on this issue.

*****
I will start with the former claim.  Let’s begin with what is true. The Charter must apply for a damages award to be available. Contrary to Conservative MP Erin O’Toole, the Charter does apply extraterritorially in this case. While there is a complex set of cases on Charter application abroad (see the recent episode of The Docket for a solid analysis), the Supreme Court held in Khadr 2010 that the Charter applied. That is now a decided legal point. The fact that Khadr could be characterized as a jihadist is also irrelevant for the purposes of Charter application—constitutional rights exist to afford protection  to those who the majority may not consider worthy of protection.

But it is not enough for the supporters of the settlement to draw a direct line from a Charter violation to the settlement. In Ward, the Supreme Court held that a complex analysis is required after a Charter breach is found in order to determine whether damages are an “appropriate and just remedy,” as per the text of s.24(1) of the Charter. The Court outlined the functional justifications for a Charter damages remedy which a claimant must trigger in order for damages to be appropriate: the remedy must compensate, deter future unconstitutional government action, or vindicate Charter rights.

It follows that whether a Charter damages remedy qua settlement is “appropriate” writ large is the wrong question. Instead, we must ask what the functional justification for the Khadr settlement is in the context of Ward. The settlement could be justified from different perspectives. This is a question of legal policy.

Compensation and vindication in this case are near-impossible to achieve. Though separate justifications, both vindication and compensation seek to resolve the intangible loss associated with a Charter violation. Millions of dollars will not put Khadr in the position he would have been in but-for the narrow Charter breaches, because his loss (the violation of Charter rights) cannot be measured. It will differ from judge to judge, court to court. It is true in the private law context (see Andrews) that courts routinely award for intangible, non-pecuniary loss.   It is also true that damages in the private law context are primarily justified by the Supreme Court on a compensatory basis: Blackwater v Plint, para 81. Much of this thinking informed the reasoning in Ward, where the Court held that the difficulty of measuring a harm should not be a bar to the availability of constitutional damages.  But both private and public law recognize the limitations of compensation for immeasurables by controlling for mass recovery in such circumstances.  For example, Andrews introduced a cap for non-pecuniary loss. On the other hand, Ward holds that even if a functional justification is identified, “good governance” concerns may militate against the award of Charter damages. If one cannot conclude that damages would properly compensate Khadr’s loss, Ward provides appropriate guidance, at para 53: “Large awards and the consequent diversion of public funds may serve little functional purpose in terms of the claimant’s needs and may be inappropriate or unjust…” In other words, we should not throw good money after bad, even to vindicate Charter rights in an abstract sense. This does not mean  that the law should not compensate when it is difficult—private law is fundamentally about compensation in such circumstances. It simply means that, especially in the Khadr case with no pecuniary loss, compensation may be a weaker justification than the alternatives—especially when the law itself recognizes the limitations.

Deterrence is a more promising function in this particular case. Law and economics theory tells us that the goal of damages-as-deterrent seeks to affect the incentives of future defendants by forcing them to internalize the costs of their tortious actions. Opponents claim that deterrence theory requires defendants to be perfectly rational economic actors, and that the empirical evidence is weak to support such a claim. However, as Professor Norman Siebrasse essentially claims in one of a series of blog posts, perfection is not of this world.  Damages fail on the deterrence rationale only if a defendant is perfectly irrational. If a defendant has some regard to consequences, deterrence theory can provide an explanation and justification for damages, including Charter damages where the compensatory rationale is exceedingly weak. This is because the possibility of liability affects, in some regard, the choices presented to a defendant in a given circumstance.

On this argument, the Khadr settlement might be justified on a deterrence basis. While government actors may not be cost-conscious, they are creatures of politics. They seek to avoid Khadr-type news cycles which obsess over multi-million dollar awards. Government actors may avoid violation of constitutional norms simply because it is in their interest to do so, having regard to the settlement consequences. Awards based on deterrence, for example, might be likely in respect of discriminatory police conduct based on race. The recent Elmardy case at the Ontario Divisional Court demonstrates how the Ward analysis is used to affect the incentives of future governments on a deterrence rationale, especially given the newsworthy nature of such police misconduct (see also Gabriella Jamieson’s recent analysis of Ward in the context of race, and the importance of deterrence).

In short, whether the Khadr settlement is justified is a question of legal policy. Different theories of public law damages can provide different perspectives. As of now, however, no proponent of the settlement has engaged with deterrence theory in a fulsome way. In other words, simply reasoning from abstract principles of “human rights” does not justify Charter damages as a legal matter, and provides no answers as to the suitability of the Khadr settlement or Charter damages.

*****
The second point, on quantum, is one which admits of no easy answers. Yet most observers do not seem to question the Prime Minister’s assertion that the litigation of Khadr’s suit would have cost the government up to $40M. For at least two reasons, this is an impossible prediction to make or accept. Even if awarded, a damages award consisting of Charter damages might not have reached even $10.5M. I should note that I do not address liability in tort respecting quantum. While that is a relevant consideration, I am responding primarily to the commentators who have focused their analysis on the Charter breaches and damages flowing from same. Much of the uncertainty respecting Charter damages applies to the relationship between common law and constitutional damages, at any rate.

First, there is a paucity of Charter damages case law with which to analogize and compare the Khadr settlement in order to make these conclusions. Ward holds that quantum is governed in deterrence and vindication cases (such as Khadr) by a number of factors, including precedent and the seriousness of the breach: see paras 51-52. Since 2010, when Ward was decided, only a handful of cases have awarded Charter damages awards in the millions. Henry involved a case of wrongful imprisonment for a period of around 27 years. The BC Supreme Court awarded $7.5M in Charter damages, designed to vindicate Henry’s rights; an additional $530 000 was awarded for pecuniary loss. In BCTF v British Columbia, a trial court awarded $2M for bad-faith legislation—a rarity in constitutional remedies. Finally, in Conseil scolaire francophone de la Colombie-Brittanique v British Columbia, the BC Supreme Court awarded $6M in Charter damages for the underfunding of a minority education transportation system. The facts, quantum of damages, and justifications for the remedy in each of these cases diverge wildly—making it difficult to draw any legal conclusions or precedential value for the Khadr case.

Moreover, few Charter damages awards since Ward have come close to $10.5M, with most cases awarding nominal damages. This is true even of recent solitary confinement cases which might be analogized to Khadr. In Ogiamien, Justice Gray held that $85 000 would compensate for the losses of two plaintiffs who suffered under conditions which “outraged standards of decency.” In that case, the court found that the conditions violated protections against cruel and unusual punishment contained in s.12 of the Charter. If that amount of money satisfied the judge’s “outrage” in that case, it might very well satisfy any outrage in Khadr. This goes to the basic premise—compensation will be in the eye of the beholder, a trial judge. Reasonably, there is enough for a judge to conclude that $10.5M is not justified because of the limited breach.

This connects to the second point: because damages require an imaginative judiciary, and because there is little case law on the matter, much depends on how a trial judge would have analyzed the facts and the evidence respecting the “seriousness of the breach.” Michael Spratt argues that the breach was quite serious, given Khadr’s youth and circumstances. But Professor Macklin characterizes Khadr 2010, which found the breaches, as a “narrow” ruling, simply based on questioning and interrogation—no cruel and unusual punishment as in Ogiamien, torture, or otherwise (though, as noted above, Macklin supports the settlement). However a judge would resolve this debate will tell the tale. There is enough doubt, though, to question confident predictions of any “dwarfing”–and to support the opposite conclusion.

This is an unsatisfying conclusion. But there is no problem in stating what the law and the facts dictate: one cannot claim in any probabilistic sense that the damages award at trial would have “dwarfed” the settlement figure. There are simply too many variables to make that conclusion—there is at least some reasonable doubt.

*****

At the end of the day, while the Charter protects the fundamental rights of those like Khadr, that does not mean that a violation of a particular right leads inexorably to any particular remedy. It does not mean that compensation follows, or that it is justified from a legal policy perspective. Much nuance has been left out of the public comments on the Khadr settlement. Many have found it appropriate to simply say that a damages award, no matter the quantum, is justified because of the violation of Khadr’s rights. That may be a sound political argument. But the law requires more. It would be appropriate to see observers engage with the legal justifications for Charter damages rather than political justifications. Moreover, it would be helpful for analysts to recognize the limitations of the law in predicting the ceiling on an award of Charter damages. Engaging on those terms will improve the state of constitutional remedies and provide more convincing analysis.

 

 

Mancini on Khadr

Announcing a guest post by Mark Mancini on the Khadr Settlement

I am delighted to announce a forthcoming guest post by Mark Mancini on the Canadian government’s settlement with Omar Khadr. There have been many hyperbolic reactions to it, so I am very much looking forward to what I expect will be nuanced and thoughtful comments on an important issue that deserves more serious treatment than it has mostly received. Mr. Mancini is a recent graduate of UNB, already a published scholar, and a friend of this blog. I am delighted to welcome him as a contributor.

The Blog of John Henry

A comment on Nick Barber’s thoughts on “The Legal Academic in the Internet Age”

How is the internet going to change the ways in which legal academics teach, publish, and engage with the outside world in the medium term? Nick Barber addresses this question in a provocative post over at the UK Constitutional Law Blog. Blogs, he argues are the way of the future, while both social media should be resisted, and traditional lectures are destined for the dustbin of history. You might think that as a blogging enthusiast I would agree, or at least find the idea exciting. But prof. Barber doesn’t think that the future belongs to any old blogs; he has a specific type of blog in mind ― professional, edited outfits (like the UK Constitutional Law Blog itself), which will fuse with more traditional journals. A future in which such outlets are the dominant medium does not strike me as blogging utopia at all.

I will not say too much about prof. Barber’s views on the future of teaching. He thinks

that lectures will increasingly be replaced by shorter, fifteen or twenty minute, vlogs that will be designed for the medium; that is, they will consist of lecturers talking to camera, perhaps with slides incorporated into the broadcast. A series of these vlogs will then combine to cover the material that used to be covered in the lecture.

This will be both less demanding for the lecturers, who will be able to re-use recordings, and less boring for the students, who will be able to consume them in more digestible chunks and at their own pace. Prof. Barber thinks that by replacing lectures, “the rise of vlogs will free up time for more interactive teaching” to small groups of students. It’s a tempting vision, as I’m planning my lectures next term to classes of, potentially, 270 and 60. But whatever the chances that it will be realized at Oxford, where prof. Barber teaches, or at similarly well-heeled institutions, I don’t see how law schools like the one at which I am will have the resources to replace my four hours of pontificating to 330 students by the appropriately astronomical number of hours needed to afford them all small group teaching.

Similarly, I will not say too much about prof. Barber’s dismissive attitude to social media (i.e. Facebook and Twitter), which he says “encourage folly and, worse, they then go on to preserve this folly for posterity”. Steve Peers has responded with a Twitter thread that points out that Twitter, in particular, enables people to interact over the barriers that separate different professions (or branches of the legal professions) and academic disciplines, which (at least sometimes) makes it possible for conversations that would otherwise happen within these different groups to be enriched, for the benefit of all involved. I would only add that social media also help break down geographical barriers in a way that not only traditional publications, or even good old email, do not, and also the barriers of rank or standing within each profession or discipline. I understand why some people will prefer to heed prof. Barber’s call for caution, and do not agree with people who occasionally come close to saying that every academic ought to be on Twitter, but I am pretty sure that many will find it useful. I know I do; indeed I think that I have benefited a great deal from my (initially very reluctant) embrace of that medium. (To give just one example, I’m not sure if my collaboration with Benjamin Oliphant would have come about if we hadn’t been interacting on Twitter, as well as reading each other’s blog posts.)

I want to comment in some more detail on prof. Barber’s views on the present and future of blogs. Prof. Barber is enthusiastic about “the emerging capacity of blogs to permit academics to engage with important constitutional issues as they unfold”, without being constrained by the “glacial” pace at which articles, even short and topical ones, in traditional publications come out. Moreover, ” the rise of the blogs has also brought with it a welcome relaxation of style”, allowing scholars to engage with lay audiences. At the same time, as with social media, prof. Barber worries that

[t]he ease and speed with which material can be published increases the risk of error and of ill-considered scholarship. This may be partly due to the laziness of scholars but it is, also, the product of a collective pressure to publish quickly.

Half-baked or outright mistaken arguments that would never have made their way onto the printed page can appear in blog posts, and live on forever in cyberspace.

Prof. Barber sees the solution to this problem in the professionalization of blogs. “We need”, he argues, “to create structures that will make use of the speed and accessibility of the Internet whilst avoiding the risks of sloppy scholarship and blow-hard opinionizing.” Already, prof. Barber says, “[t]he best law blogs, like journals, now play an editorial role, reviewing and critiquing submissions before they are posted.” Whether these structures develop as part of what are now blogs or what are now journals, they will cause the quality of blog output to improve. This, in turn, will lead to academia finally crediting blog posts similarly to more traditional publications for the purposes of promotion, and also cause “the era of the personal blog as a serious academic enterprise [to] come to an end”, as independents are out-competed on quality by “edited blog[s]”.

Unlike prof. Barber, I do not see these developments as something to be wished for. It’s not that I’m against quality, of course ― I try to achieve it with my own posts here. But I know that I occasionally produce bloopers, and suspect that I am not quite alone in this. So I can see the attraction of prof. Barber’s position ― if we think that the most important thing for us (as scholars or as lawyers) is that everything written on law be of high quality. But I don’t think that this is the only thing that matters, and I’m afraid that rather more will be lost ― and perhaps less gained ― in the quest for quality than prof. Barber cares to admit.

For one thing, I’m skeptical about the ability of blogs to “play an editorial role”, at least a meaningful one, in a timely fashion. As they become more institutionalized, less the preserve of enthusiasts who pour the hearts into blogging without counting the hours, and especially if the volume of contributions (and perhaps the competition to get published) increases, as prof. Barber expects that it will, edited blogs will be likely to acquire some of the less pleasant characteristics of the journals, the “glacial” pace among them. The more quality assurance one wants to have ― the more editing and stages of peer review ― the slower the process becomes, until the only time savings over the traditional journals are those made by eliminating printing.

More importantly, the institutionalization of blogs and the disappearance of independent blogging would likely close down an important avenue that is now available to people who lack the exalted status and distinguished credentials of prof. Barber and his fellow contributors to the UK Constitutional Law Blog for communicating their ideas about the law. When I started this blog, I was a graduate student with exactly one academic publication to my name. Nobody would have given me a platform in a serious edited blog. But less than three years later, Double Aspect was named the best law blog in Canada. Paul Daly had a much fuller CV and a higher perch when he started Administrative Law Matters, but he too was “only” a junior academic at that point. Yet within a couple of years his blog was an indispensable resource on public law, and he also won (well deserved, in his case!) recognition as the best in Canada. Independent blogging democratizes academic and professional conversations about law by allowing upstart voices to join in and, just possibly, be heard if they have something interesting to say.

Independent blogging can also be an avenue by which unorthodox ideas that might not pass the test of editorial quality control can be developed. I doubt that any blog editor would have cared much for my early musings about originalism. Two peer-reviewed articles later, I can say that they were not as silly as they might have seemed at the time, though of course the process of working on those articles with Mr. Oliphant involved developing and clarifying my (and his) initial ideas a great deal. But without those early unedited musings, the articles would not have happened. And, to repeat, if I didn’t have my own blog, and had to count on the good will or open mind of an editor ― who would, in the nature of things, be an established, and more or less orthodox, academic ― to get them published, I doubt that they would ever have seen the light of day.

I also think that personal or (relatively) small-group blogs (such as the Volokh Conspiracy or Balkinization) have another advantage over institutional ones: they require, and thus select for, commitment. Institutional blogs make it possible for any given person to contribute at large intervals, perhaps only sporadically. That can of course be a good thing ― people who only sometimes think they have something to say in blog post form have an outlet for those occasions. (For this same reason, I think guest-posts are generally great, and am delighted to have hosted a number of them of the years.) But I do think that there is something to be said for committing to a platform that leaves you no cover and forces you to blog not just now and then, but week in and week out. It’s bloody hard ― as my occasional bouts of silence show, even maniacs like me sometimes find it impossible ― but as with so much else, there are benefits to regular practice. It makes one develop one’s voice and style; it allows one to cover a variety of subjects in some depth; it provides one with a well-developed record of one’s observations and opinions that can be useful for other purposes (like teaching, or simply keeping track of legal developments) in the future.

Even if the personal blog cannot compete with a professionally edited platform for high-level scholarship on pure quality, it has its own, different value. It can be a way for new and rebellious voices to enter into and enliven the conversation. It can be a proving ground for people and ideas. It can be the record of a coherent or developing thought process. In can, in short, be many things that a edited blog cannot. Call me a blogging romantic if you will,

But before I let your steam drill beat me down,
I’d die with a hammer in my hand, Lord, Lord,
I’d die with a hammer in my hand.

 

New Year, New Look

For 2017, Double Aspect has a new look and a new address

This is just a quick note to let my readers know that I’ve given the blog’s look an update. Nothing crazy, but I hope that it looks better than it did before ― or at any rate that it looks reasonably well. If you have any concerns please let me know.

In addition, the blog now has a new URL ― doubleaspect.blog. You don’t actually need to update your bookmarks, as you’ll be automatically redirected to the new address even if you go to the old one, but if you want to save yourself that fraction of a second, then go ahead.

I don’t suppose my posts were much missed during the holidays, which I hope were happy for all. But now that that’s over, I will resume normal blogging in short order. Happy 2017, everyone!

#Clawbies2016

My nominations for this year’s Clawbies, and some other recommendations

December in the Southern hemisphere means that summer, not winter, is around the corner, and while the Santa Parade and Christmas trees are all there, they mostly provoke cognitive dissonance in those of us used to their being accompanied by snow (or grumblings about the lack thereof). That, and also concerns about Santa and his reindeer suffering a heatstroke. (On the plus side, I suppose there is no danger of getting burned in a chimney.) One holiday tradition that is not so weather-bound (though it will still be upended ― by the time difference that is; by the time the results come it, it will very much be 2017 in New Zealand) is that of the Clawbies ― the Canadian legal blogosphere’s yearly dose of self-congratulation.

We are about half-way through the nomination period, and some people, to whom I am very grateful, have been kind enough to put a word in for Double Aspect. It’s time for me to make my own suggestions. To be clear, by nominating some blogs and not others, I am not suggesting that these blogs are in some objective, absolute way “better” than others. What I am saying is that I like them, and think they deserve attention from readers and recognition from the Clawbies’ judges. Plenty of others do too, but the Clawbies’ rules say we are limited to three nominations, but the truth of the matter is that picking only three is pretty much mission impossible. So I will also bend the rules a bit, and make a few recommendations ― blogs I do not formally (and in some case am not permitted to) nominate, but which I still think should get considered for (and indeed win) some Clawbie or other.

Indeed, I will start with a recommendation, because it is for a blog that I could, and perhaps should, have nominated: Paul Daly’s Administrative Law Matters, last year’s big winner. Having nominated his blog repeatedly, I hope prof. Daly will forgive me for taking a break this time. I am pretty sure I will be nominating him again very soon, and indeed he would be a richly deserving winner again this time.

So for my actual nominations:

  1. The Université de Sherbrooke’s Law Faculty blog, À qui de droit: I mentioned it last year as a possible future nominee, and here it is. Sherbrooke’s response to Calgary’s ABlawg and the University of Alberta Faculty of Law Blog doesn’t (yet) have the former’s Clawbies-winning pedigree or the latter’s record of placing its contributors on the Supreme Court, but it is the best such collective effort east of the 110th meridian.
  2. Édith Guilhermont’s Juris Blogging: last year, I described Dr. Guilhermont’s as “the tireless apostle of legal blogging in Québec (although, ironically, not yet a blogger herself ― nudge nudge!)”; now, fortunately, the main part of this description is even more true, while the parenthetical no longer is. Juris Blogging is, so far as I know, the only blog devoted to law blogs in Canada. This may seem insular, but if Dr. Guilhermont is right that, for an increasing number of lawyers, blogs will be a supplement to, and even a substitute for, traditional legal scholarship, then she will be describing an increasingly important component of the legal culture and practice.
  3. Lisa Silver’s Ideablawg: Prof. Silver’s probing reflections on difficult issues in the criminal law are a must read for anyone interested in the subject. To my lasting regret, I didn’t care one bit for criminal law as a student, and avoided classes in it except for the compulsory one; Ideablawg helps me make up for the resulting ignorance, and I am grateful to its author for this! Thrice a Clawbie runner-up, it’s time Ideablawg were a winner already.

And here’s another recommendation, for a blog that I cannot nominate because I occasionally contribute to it (which reminds me that I’m overdue on my next installment): that of the CBA’s National Magazine. Its variety of subjects, contributors, and perspectives is pretty unique in the Canadian blawgosphere.

Finally, I thought I’d mention a couple of bloggers from my new home, New Zealand, which has more to teach Canadians about matters constitutional than we tend to suspect. One is Edward Willis, whose blog offers some very thoughtful takes on constitutional law and theory; the other is Andrew Geddis, whose posts on Pundit are always interesting, and will often highlight to Canadian readers the remarkable similarity of the issues faced in our two countries.